DUGAS v. LUMBERMENS MUTUAL CASUALTY CO.

14016

217 Conn. 631 (1991) | Cited 17 times | Supreme Court of Connecticut | March 5, 1991

The principal issue in this appeal iswhether, in calculating the amount due an insured fromuninsured motorist coverage, the insurer may deduct theentire amount of reparations benefits previously paidto the insured, or whether the deduction for previouslypaid reparations benefits must be reduced to reflectthe insurer's contribution to attorney's fees incurredby the insured in effecting a recovery from thetortfeasor. The trial court concluded that the carrierwas required to contribute to the insured's legalfees. The Appellate Court affirmed the trial court'sjudgment. We now reverse.

The parties stipulated to the following facts. On April17, 1982, the plaintiff, Thomas P. Dugas, was injuredin an accident involving two automobiles. Theautomobile driven by the plaintiff was insured under apolicy issued by the defendant, Lumbermens MutualCasualty Company. That policy provided uninsuredmotorist coverage in the amount of $40,000, basicreparations benefits in the required amount of $5000and added reparations benefits in the amount of$20,000. The total of reparations benefits paid to theplaintiff by the defendant was $13,316.63. Theplaintiff, with the assistance of his attorney,recovered $20,000 from the tortfeasor's insurer. Theamount recovered was the limit of the tortfeasor'sliability insurance policy.

The parties stipulated that the plaintiff's damageswere at least $40,000. It was agreed, therefore, thatthe amount due the plaintiff under the uninsured motoristcoverage of his policy was $20,000.1 It was also

[217 Conn. 634]

     stipulated that the defendant was entitled to bereimbursed from that amount for the reparations benefitsit had previously paid to the plaintiff. The partiesdisagreed, however, over the amount of the reimbursement.The defendant claimed that it was entitled to recoverthe entire $13,316.63 it had previously paid, whilethe plaintiff contended that the defendant shouldrecover only two thirds of the reparations benefitsit had paid, or $8877.75. The plaintiff argued that thedefendant must contribute one third of its recovery ofreparations payments toward the legal expenses incurredby the plaintiff in effecting a recovery from the tortfeasor.

This dispute was presented to an arbitrator pursuantto the mandatory arbitration clause in the plaintiff'sinsurance policy. The arbitrator ruled in favor of thedefendant. The plaintiff subsequently made anapplication to correct or vacate the arbitrator'sdecision in the Superior Court. The trial court, Noren,J., granted the plaintiff's application and vacated thearbitration award. On appeal, the Appellate Courtremanded the case to the trial court for a de novoreview of the arbitrator's interpretation andapplication of the law. See Dugas v. Lumbermens MutualCasualty Co., 14 Conn. App. 153, 156, 540 A.2d 89(1988). The trial court, Shaughnessy, J., found for theplaintiff on remand, and the Appellate Court affirmedthe trial court's judgment on alternative grounds.Dugas v. Lumbermens Mutual Casualty Co., 22 Conn. App. 27,33, 576 A.2d 165 (1990). In its opinion the Appellate

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     Court stated that 38-175a-6 (d)(3) of the Regulationsof Connecticut State Agencies,2 upon which thedefendant relied in arguing for a complete recovery ofpreviously paid reparations benefits, "cannot be readto be valid without reference to the attorney's feeprovision of [General Statutes] 38-325 (b)."3 Id.On the basis of what it perceived as the public policyunderlying 38-325 (b), the Appellate Court concludedthat the regulation would be void unless interpreted asincorporating the attorney's fees provision embodied in38-325 (b). Id., 39.

[217 Conn. 636]

We granted the defendant's petition for certificationlimited to the following issues: (1) whether theAppellate Court properly considered the validity of38-175a-6 (d)(3) of the Regulations of ConnecticutState Agencies;4 and (2) whether the Appellate Courtproperly concluded that the insurance regulation wasvoid unless the attorney's fees provision of 38-325 (b)was read into the regulation. Dugas v. LumbermensMutual Casualty Co., 216 Conn. 803, 577 A.2d 715(1990). Because our decision depends upon therelationship between the regulation at issue and38-325 (b), we need to consider the background andevolution of these and other statutory and regulatoryprovisions related to uninsured motorist coverage.

[217 Conn. 637]

In 1967, the legislature enacted General Statutes38-175c,5 which provides that all automobile liabilitypolicies must include uninsured motorist coverage. In1972, the legislature passed the no-fault insurancestatutes, including General Statutes 38-326 and 38-327,which require all motorists to obtain uninsuredmotorist and basic reparations coverage, and 38-325(b), which provides that an insured who receivesreparations benefits must reimburse the insurer for thebenefits received if he subsequently obtains, byjudgment or settlement, an award of damages from thetortfeasor. As originally enacted, 38-325 (b) did notallow the insured to deduct from the reparationsbenefits reimbursed to the insurer an amount reflectingthe insurer's share of the legal fees incurred by theinsured in recovering from the tortfeasor. In 1980, thelegislature amended 38-325 (b) to allow insureds toreduce the amount of the reimbursement by an amountreflecting the insurer's contribution to the attorney'sfees expended by the insured in obtaining the damageaward. See Public Acts 1980, No. 80-131.

[217 Conn. 638]

In 1975, the insurance commissioner, pursuant to hispower under General Statutes 38-175a6 to adoptregulations concerning the terms of uninsured motoristcoverage, amended 38-175a-6 (d)(3) of the Regulationsof Connecticut State Agencies in order to allowinsurers to seek reimbursement for reparations benefitsfrom amounts paid or payable to their insured by reasonof uninsured motorist coverage provided by the insurer.The amended regulation was approved by the legislativeregulation review committee. In 1986, the insurancecommissioner again amended 38-175a-6. That amendment,however, did not affect the provisions of theregulation at issue in this case. The legislativeregulation review committee reviewed and approved the1986 amendment to the regulation.

With this background in mind, we turn to thedispositive issue in this appeal, namely whether thedefendant, under 38-175a-6 (d)(3) of the regulations,is entitled to full reimbursement of the $13,316.63 itpaid the plaintiff in reparations benefits, or whetherthe defendant can collect only two thirds of thatamount ($8877.75). The Appellate Court concluded thatthe defendant is entitled to collect only the latter amountbecause 38-175a-6 (d)(3) was repealed by implicationwhen the legislature amended 38-325 (b) in 1980 to allowthe reduction of the reimbursement for reparationsbenefits7 from damage awards in order to reflectattorney's fees paid by the insured to recover from the

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     tortfeasor. Although the Appellate Court did notexplicitly state that it concluded that 38-175a-6 (d)(3) was repealed by implication by the amendment of38-325 (b), this conclusion is implicit in its opinion.

The plain language of 38-175a-6 (d)(3) of theregulations does not provide for a deduction forattorney's fees from the reimbursement for reparationsbenefits out of uninsured motorist benefits payable tothe insured by his own insurer. The regulation statesthat "[t]he policy may also provide that . . . anyamount of any basic reparations benefits paid orpayable under the policy will reduce the damages whichthe insured may recover under this coverage . . . ."(Emphasis added.) The Appellate Court did notconclude, and the plaintiff does not contend, thatprior to 1980 the regulation provided for a setofffor attorney's fees or that the 1975 revision of theregulation was void ab initio because it did notinclude such a provision. Rather, the Appellate Courtconcluded that the public policy underlying the 1980amendment to 38-325 (b) applied not only to thereimbursement to the insurer of reparations benefitsfrom damage awards from tortfeasors, but also to thereimbursement of those same benefits from uninsuredmotorist coverage benefits payable by the insurer tothe insured.8 Dugas v. Lumbermens Mutual CasualtyCo., supra, 22 Conn. App. 37. The court concludedthat the regulation would be void as against publicpolicy if interpreted as not providing for a setoff forattorney's fees from the reimbursement for reparations

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     payments under such circumstances, and thereforeconstrued the regulation as allowing the setoff.9Id., 39.

This case differs from prior cases in which we haveaddressed the validity of regulations issued by theinsurance commissioner. The party challenging aregulation typically claims that the regulation wasinconsistent with or beyond the legislature's grant ofauthority to the commissioner at the time the relevantprovisions of the regulation were issued. See, e.g.,Travelers Ins. Co. v. Kulla, 216 Conn. 390,579 A.2d 525 (1990); Roy v. Centennial Ins. Co., 171 Conn. 463,370 A.2d 1011 (1976); Citrano v. Berkshire Mutual Ins.Co., 171 Conn. 248, 368 A.2d 54 (1976). In contrast,the Appellate Court in this case held that 38-175a-6(d)(3), the relevant portions of which were issued in1975, only became invalid when 38-325 (b) was amended in1980. Dugas v. Lumbermens Mutual Casualty Co., supra,22 Conn. App. 39. The Appellate Court ruled, in effect,that the regulation was repealed by implication in 1980to the extent that the regulation did not allow for adeduction of attorney's fees from reimbursement due tothe insurer out of uninsured motorist benefits.10

[217 Conn. 641]

Regulations issued by the insurance commissioner toimplement the statutes governing uninsured motoristcoverage are presumed valid and have the force andeffect of a statute. Travelers Ins. Co. v. Kulla,supra, 399; Pecker v. Aetna Casualty & Surety Co.,171 Conn. 443, 449, 370 A.2d 1006 (1976); see Phelps DodgeCopper Products Co. v. Groppo, 204 Conn. 122, 128,527 A.2d 672 (1987). Therefore, the rule disfavoringthe implied repeal of a statute by the subsequentenactment of another statute also applies to theimplied repeal of a regulation by a statute, especiallywhere, as in the present case, the regulation at issuehas been approved by the legislative regulation reviewcommittee.11

The rule disfavoring implied repeals is a "wellestablished principle of statutory construction."Southern Connecticut Gas Co. v. Housing Authority,191 Conn. 514, 521, 468 A.2d 574 (1983). The legislatureis presumed to have acted with the intent to create aconsistent body of law. Warner v. Leslie-ElliottConstructors, Inc., 194 Conn. 129, 134, 479 A.2d 231(1984). If two statutes appear to be in conflict butcan be construed as consistent with each other, thenthe court should give effect to both. Hirschfeld v.Commission on Claims, 172 Conn. 603, 607, 376 A.2d 71(1977). "[E]nactments by the General Assembly arepresumed to repeal earlier inconsistent ones to theextent that they are in conflict." Southern ConnecticutGas Co. v. Housing Authority, supra. Because repeal byimplication is generally disfavored, however, theprinciple applies only when the relevant statutes"cannot stand together." Id.; Hirschfeld v. Commissionon Claims, supra, 606-607.

[217 Conn. 642]

There is significant evidence that the legislature,the legislative regulation review committee and theinsurance commissioner do not share the AppellateCourt's view that the amendment of 38-325 (b) in 1980impliedly repealed 38-175a-6 (d)(3). Since 1980, thelegislature has enacted six amendments to 38-175c, theuninsured motorist coverage statute, yet it has neverattempted to preempt the regulation by providing for asetoff for attorney's fees from a reimbursement ofreparations benefits payable from uninsured motoristbenefits. See Public Acts 1982, No. 82-441, 20, 23;Public Acts 1983, No. 83-267, 2; Public Acts 1983, No.83-461; Public Acts 1985, No. 85-7; Public Acts 1986,No. 86-403, 79, 132; Public Acts 1990, No. 90-243, 127.If a regulation has been in existence for a substantialperiod of time and the legislature has not sought tooverride the regulation, this fact, although notdeterminative, provides persuasive evidence of thecontinued validity of the regulation. Phelps DodgeCopper Products Co. v. Groppo, supra, 130.

The approval of revisions to 38-175a-6 by the legislativeregulation review committee in 1986 provides additionalsupport for the defendant's contention that theregulation was not repealed by implication in 1980.12General Statutes 4-17013 requires the legislative

[217 Conn. 643]

     regulation review committee to approve the adoption,amendment or repeal of any regulation. "The fact thatthe commissioner's regulation has been approved by thestanding legislative regulation review committee,although not dispositive of the issue before us, is animportant consideration in our determination of whetherthe commissioner's regulation comports with thelegislative intent . . . ." (Emphasis in original.)Phelps Dodge Copper Products Co. v. Groppo, supra,129-30; Texaco Refining & Marketing Co. v. Commissioner,202 Conn. 583, 599-600, 522 A.2d 771 (1987).

The fact that the insurance commissioner has neverproposed an amendment to the regulation to provide fora setoff for attorney's fees, especially in 1986 whenother provisions of the regulation were amended, is anindication that the commissioner does not share theview of the Appellate Court that the regulation wasrepealed by implication in 1980. "The insurancecommissioner has a `very broad grant of regulatoryauthority' in filling in the interstices of theuninsured and, underinsured motorist coveragelegislation . . . ." Roy v. Centennial Ins. Co., supra,473. "In the construction of statutes, great deferenceis to be accorded to the construction given the statuteby the agency charged with its enforcement. Griggs v. DukePower Co., 401 U.S. 424, 433, 91 S.Ct. 849, 28 L.Ed.2d158 [1971]; Corey v. Avco-Lycoming Division, 163 Conn. 309,326, 307 A.2d 155 [1972], cert. denied, 409 U.S. 1116,93 S.Ct. 903, 34 L.Ed.2d 699 [1973]" Id.

The critical factor, however, in determining whetherthe legislature impliedly repealed 38-175a-6 (d)(3) in1980, is whether the public policy underlying the 1980amendment to 38-325 (b) applies with equal force in

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     the context of the reimbursement of reparationspayments from uninsured and underinsured14 motoristrecoveries. The Appellate Court concluded that thepolicy expressed in 38-325 (b), as amended in 1980,applied both to the reimbursement of reparationsbenefits from damage awards and to reimbursement fromuninsured and underinsured motorist benefits.15Dugas v. Lumbermens Mutual Casualty Co., supra,22 Conn. App. 35. Although we find some similarity in themanner in which that policy is implicated in thecontext of reimbursement from damage awards andreimbursement from underinsured motorist recoveries,we do not find the connection sufficient to necessitatereading the attorney's fees provision of 38-325 (b)into the regulation.

A review of the legislative history of the statutereveals that the primary motivation leading to theenactment of the 1980 amendment to 38-325 (b) was thelegislature's concern that it was unfair to allow aninsurer to benefit from damage awards obtained by aninsured party from a tortfeasor without requiring the

[217 Conn. 645]

     carrier to bear some of the legal costs incurred ineffecting that recovery. 23 S. Proc., Pt. 4, 1980Sess., pp. 1266-73; 23 H.R. Proc., Pt. 12, 1980 Sess.,pp. 3629-33; Conn. Joint Standing Committee Hearings,Judiciary, Pt. 2, 1980 Sess., pp. 341-45, 416-20. It isimportant to note that there are two distinct benefitsthat an insurer may receive as a result of the insuredhaving secured a tort recovery, and it is necessary toconsider these benefits separately in analyzing thepurpose of the 1980 amendment to 38-325 (b).

The first benefit received by the insurer isreimbursement of the reparations benefits it hadpreviously paid to the insured. If the tortfeasor'sautomobile is fully insured, the insurer will bereimbursed its reparations benefits out of the tortrecovery secured by the insured. In such a case, theinsurer has benefited from the creation of a separatepool of funds by the insured from which thereimbursement of reparations payments is obtained.There is no dispute that under those circumstances38-325 (b) requires the insurer to share the legal feesrelated to that benefit.

In cases like this one involving an underinsuredmotorist, a tort recovery provides the insurer with asecond benefit for which 38-325 (b) does not require theinsurer to contribute to the related legal cost. Thebenefit is that the insurer's potential liability tothe insured under the uninsured motorist coverage isreduced by any tort recovery. Nevertheless, 38-325 (b)provides that the setoff for legal fees to which theinsured is entitled is based only on a percentage ofthe reparations benefits reimbursed, not upon apercentage of the amount by which the insurer'sliability under the uninsured motorist coverage hasbeen reduced. The amount payable to the plaintiff underthe uninsured motorist coverage of his policy has beenreduced by $20,000 because he secured that amount

[217 Conn. 646]

     from the tortfeasor. As we noted, however, 38-325 (b)does not reimburse insureds for the legal fees relatedto that benefit to the insurer. Rather, 38-325 (b)requires only that the insurer reimburse the insuredfor the legal fees related to the amount of reparationsbenefits that the insurer recovers.

The question then becomes whether the plaintiff hasbenefited the defendant by obtaining funds from whichreparations benefits will be reimbursed. When, as inthe present case, the insurer can seek reimbursement ofreparations benefits from either the damage award orthe underinsured motorist benefits and chooses thelatter course, it cannot be said that the insurer hasbenefited from the tort recovery in the mannercontemplated by 38-325 (b).16 While we recognize thatthe tort recovery clearly has benefited the defendantby reducing the underinsured motorist benefits payable,we do not discern any legislative policy to compelinsurers to share the legal cost related to that benefit.

It is not necessarily an anomalous result that aninsured party injured by a fully insured motorist isable to obtain a contribution from the insurer to hisattorney's fees from the amount of reparations benefitsreimbursed to the insurer, while an insured partyinjured by an underinsured motorist is not. The

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     legislature reasonably could have determined that requiringthe insurers to share the legal expenses in securingreimbursement of reparations benefits in cases involvingunderinsured motorists, where the insurer would also haveto pay underinsured motorist benefits, would placegreater pressure on insurance rates than it was willingto tolerate.17 Moreover, even if the plaintiff iscorrect that this result is anomalous, his remedy lieswith the legislature or the insurance commissioner, notwith this court.

We conclude that the plain language of 38-175a-6 (d)(3) does not provide for the setting off of attorney'sfees against the reimbursement of reparations benefitsfrom uninsured or underinsured motorist recoveries andthat the regulation as so construed is valid. We reachthis conclusion because of: (1) the general disfavorwith which this court looks upon implied repeals; (2)the evidence that the legislature, the legislativeregulation review committee and the insurancecommissioner do not regard the regulation asinconsistent with the public policy underlying theattorney's fees provision of 38-325 (b); and (3) ourown doubt as to whether that public policy applies tothe regulation at issue. In a case involving achallenge to a different provision of 38-175a-6, wenoted that "[t]he automobile liability insurancebusiness is one which is extensively regulated . . .and judicial revision of the terms upon which suchpolicies are issued may produce extensive repercussionsthroughout the insurance industry of the state." Roy v.Centennial Ins. Co., supra, 473. Those repercussionsare to be avoided in the absence of a clear legislativeintent to revise the existing regulations and statutes.

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The judgment of the Appellate Court is reversed and thecase is remanded to that court with direction to remandthe case to the trial court with direction to reinstatethe arbitration award.

In this opinion the other justices concurred.

1. This amount represents the $40,000 of uninsuredmotorist coverage, reduced by the $20,000 recovery fromthe tortfeasor as required by 38-175a-6 (d)(1) of theRegulations of Connecticut State Agencies. It is notdisputed that the defendant could have sought reimbursementof the reparations benefits from the $20,000 tort recoveryunder General Statutes 38-325 (b), but it did not do so.It is also clear that had the defendant sought reimbursementpursuant to 38-325 (b), it would have recovered only twothirds of the reparations benefits because the statutereduces the reimbursement to reflect the attorney's feesincurred by the insured in recovering from the tortfeasor. Title 38 of the General Statutes Revised to 1989 hasbeen transferred, and its sections renumbered, to title38a of the General Statutes Revised to 1991. For purposesof this opinion, we shall refer to the relevant statutesin their previous numerical form under title 38.

2. Section 38-175a-6 of the Regulations of ConnecticutState Agencies provides in pertinent part: "(d) LIMITSOF LIABILITY. The limit of the insurer's liability maynot be less than the applicable limits for bodilyinjury liability specified in subsection (a) of section14-112 of the general statutes, except that the policymay provide for the reduction of limits to the extentthat damages have been "(1) paid by or on behalf of any person responsiblefor the injury, "(2) paid or are payable under any workers'compensation or disability benefits law, or "(3) paid under the policy in settlement of aliability claim. The policy may also provide that anydirect indemnity for medical expense paid or payableunder the policy or any amount of any basic reparationsbenefits paid or payable under the policy will reducethe damages which the insured may recover under thiscoverage and any payment under these coverages shallreduce the company's obligation under the bodily injuryliability coverage to the extent of the payment." The policy issued by the defendant included aprovision based on 38-175a-6 (d)(3) that authorizedthe defendant to reduce any amount payable underuninsured motorist coverage by the amount ofreparations benefits paid.

3. General Statutes 38-325 (b) provides: "Whenevera person who receives basic reparations benefits for aninjury recovers damages, either by judgment orsettlement, from the owner, registrant, operator oroccupant of a private passenger motor vehicle withrespect to which security has been provided under thischapter or from a person or organization legallyresponsible for his acts or omissions, the insurer isentitled to reimbursement from the claimant to theextent that said basic reparations benefits have beenpaid, minus an amount which represents the insurer'scontribution toward attorney's fees for the collectionof basic reparations benefits. Such amount shall hecomputed by multiplying the total amount of suchreasonable attorney's fees and costs, by a fraction,the numerator of which shall be the amount of basicreparations benefits received by the claimant and thedenominator shall be the amount of damages recovered bythe claimant, less court costs. In no event shall suchamount exceed one-third the amount of the basicreparations benefits to be reimbursed to the insurer.The insurer shall have a lien on the claimant'srecovery for the amount to which he is entitled forsuch reimbursement; provided no such lien shall attachuntil such time as the proceeds of such recovery are inthe possession and control of such claimant." (Emphasisadded.)

4. The defendant initially argues that we shouldreverse the decision of the Appellate Court because theissue of the validity of 38-175a-6 (d)(3) of theRegulations of Connecticut State Agencies was neverbriefed or argued before either the trial court or theAppellate Court. We first note that the defendantconceded that its brief to the Appellate Court included"passing" references to this issue. Even in the absenceof such references, the defendant's first claim cannotsucceed. We have previously noted that this court hasthe discretionary authority to consider alternativegrounds for affirming a judgment even though thesegrounds have not been briefed or argued by the parties.See State v. Badgett, 200 Conn. 412, 432 n. 10,512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93L.Ed.2d 373 (1986). By implication, the Appellate Courthas this same authority. We conclude that the AppellateCourt did not abuse its discretion in considering thevalidity of 38-175a-6 (d)(3). Moreover, on appeal to this court, the defendant hasbeen able to address fully the merits of whether38-175a-6 (d)(3) is void. Therefore, it will not beprejudiced by our consideration of the merits of thisissue, and any prejudice it may have suffered in theAppellate Court is cured.

5. General Statutes 38-175c provides inpertinent part: "(a)(1) Every such policy shall provideinsurance, herein called uninsured motorist coverage,in accordance with such regulations, with limits forbodily injury or death not less than those specified insubsection (a) of section 14-112, for the protection ofpersons insured thereunder who are legally entitled torecover damages from owners or operators of uninsuredmotor vehicles and underinsured motor vehicles andinsured motor vehicles, the insurer of which becomesinsolvent prior to payment of such damages, because ofbodily injury, including death resulting therefrom,provided each insurer licensed to write automobileliability insurance in this state shall provide suchuninsured motorists coverage with limits requested bythe named insured upon payment of the appropriatepremium, but such insurer shall not be required toprovide such coverage with limits in excess of thelimits of the bodily injury coverage of such policyissued to such named insured. . . . Every such policyissued on or after October 1, 1971, which contains aprovision for binding arbitration shall include aprovision for final determination of insurance coveragein such arbitration proceeding."

6. General Statutes 38-175a provides in pertinentpart: "MINIMUM PROVISIONS IN AUTOMOBILE LIABILITYPOLICIES. (a) The insurance commissioner shall adoptregulations with respect to minimum provisions to beincluded in automobile liability insurancepolicies . . . . Such regulations shall relate to theinsuring agreements, exclusions, conditions and otherterms applicable to . . . uninsured motorists coverages. . . ."

7. In Shelby Mutual Ins. Co. v. Della Ghelfa,200 Conn. 630, 634-39, 513 A.2d 52 (1986), we upheld thedecision of the Appellate Court construing the term"basic reparations benefits" to include both basic andadded reparations benefits for the purpose of theprovisions of General Statutes 38-325 (b) concerningthe reimbursement of reparations benefits. There islikewise no distinction between these two terms for thepurposes of this opinion.

8. The Appellate Court rejected the plaintiff'sclaim that General Statutes 38-325 (b), as opposed to theregulation, is directly applicable to this case. Dugasv. Lumbermens Mutual Casualty Co., 22 Conn. App. 27, 31-32,576 A.2d 165 (1990). The plaintiff does not make thatargument in this appeal.

9. In reaching the conclusion that the publicpolicy underlying General Statutes 38-325 (b) was"strong and broad based," the Appellate Court reliedin part on the existence of similar attorney's feesprovisions in other statutes. Dugas v. LumbermensMutual Casualty Co., 22 Conn. App. 27, 35, 576 A.2d 165(1990), citing General Statutes 38-174n (b) (amount ofhealth insurer's lien on workers' compensation awardreduced by attorney's fees), and General Statutes31-293 (a) (employer's claim for reimbursement of workers'compensation benefits from damage award secured byworker reduced by attorney's fees). We do not find theexistence of these statutes sufficient to warrantreading the attorney's fees provision of 38-325 (b)into 38-175a-6 (d)(3) of the Regulations of ConnecticutState Agencies.

10. One can arguably read the Appellate Courtdecision as actually having ruled that the regulationwas amended by implication to provide for a setoff forattorney's fees when the legislature amended GeneralStatutes 38-325 (b). Such a distinction is insignificant,however, because "[r]epeal by implication when onlya part of the prior statute is repealed is identicalwith amendment by implication." 1A J. Sutherland,Statutory Construction (4th Ed. Sands) 22.22.

11. This conclusion is also consistent with therule that a state statute should be construed as havingpreempted a local ordinance only when the legislaturehas demonstrated its intent to regulate the entirefield or when the ordinance is in irreconcilableconflict with the statute. Dwyer v. Farrell, 193 Conn. 7,14, 475 A.2d 257 (1984).

12. The amendments to the regulation approvedin 1986 did not affect those portions of the regulationat issue in this case. The action taken by thelegislative regulation review committee in 1986, however,is still pertinent because it provides evidence onwhether the committee found the amended regulation to beconsistent with the overall statutory scheme that theregulation seeks to implement. See Caldor, Inc. v.Heslin, 215 Conn. 590, 599, 577 A.2d 1009 (1990); TexacoRefining & Marketing Co. v. Commissioner, 202 Conn. 583,600, 522 A.2d 771 (1987).

13. General Statutes 4-170 provides in pertinentpart: "(b) No adoption, amendment or repeal of anyregulation . . . shall be effective until the originalof the proposed regulation approved by the attorneygeneral . . . ha[s] been submitted to the standinglegislative regulation review committee . . . and theregulation has been approved by the committee . . . . Theform of proposed regulations which are submitted to thecommittee shall be as follows: New language added to anexisting regulation shall be in capital letters andlanguage to be deleted shall be enclosed in brackets . . . ."

14. "[A]n `underinsured motor vehicle' means amotor vehicle with respect to which the sum of the limitsof liability under all bodily injury liability bonds andinsurance policies applicable at the time of theaccident is less than the applicable limits ofliability under the uninsured motorist portion of thepolicy against which claim is made under subdivision(1) of this subsection." General Statutes 38-175c (b)(2).

15. The Appellate

16. The defendant stated that in all cases whereit can seek reimbursement from either a tort recoveryunder General Statutes 38-325 (b) or from underinsuredmotorist benefits pursuant to 38-175a-6 (d)(3) of theRegulations of Connecticut State Agencies, it willpursue the latter course because 38-325 (b) requires asetoff for attorney's fees while the regulation, itcontends, does not. We note that it seems arbitrary to rely on the sourceof the reimbursement, a factor within the insurer'scontrol, as the criterion for determining whether theinsurer has been benefited. The existing statutory andregulatory structure give the insurer this power,however, and our decision must be made within thisframework. See General Statutes 38-325 (b);Regs., Conn. State Agencies 38-175a-6 (d)(3).

17. The benefit argument is also weaker in a caseinvolving an underinsured motorist, as opposed to afully insured motorist, because General Statutes38-175c (b)(1) requires an insured party to exhaust hisremedies against the tortfeasor as a condition ofobtaining underinsured motorist benefits.

The principal issue in this appeal iswhether, in calculating the amount due an insured fromuninsured motorist coverage, the insurer may deduct theentire amount of reparations benefits previously paidto the insured, or whether the deduction for previouslypaid reparations benefits must be reduced to reflectthe insurer's contribution to attorney's fees incurredby the insured in effecting a recovery from thetortfeasor. The trial court concluded that the carrierwas required to contribute to the insured's legalfees. The Appellate Court affirmed the trial court'sjudgment. We now reverse.

The parties stipulated to the following facts. On April17, 1982, the plaintiff, Thomas P. Dugas, was injuredin an accident involving two automobiles. Theautomobile driven by the plaintiff was insured under apolicy issued by the defendant, Lumbermens MutualCasualty Company. That policy provided uninsuredmotorist coverage in the amount of $40,000, basicreparations benefits in the required amount of $5000and added reparations benefits in the amount of$20,000. The total of reparations benefits paid to theplaintiff by the defendant was $13,316.63. Theplaintiff, with the assistance of his attorney,recovered $20,000 from the tortfeasor's insurer. Theamount recovered was the limit of the tortfeasor'sliability insurance policy.

The parties stipulated that the plaintiff's damageswere at least $40,000. It was agreed, therefore, thatthe amount due the plaintiff under the uninsured motoristcoverage of his policy was $20,000.1 It was also

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     stipulated that the defendant was entitled to bereimbursed from that amount for the reparations benefitsit had previously paid to the plaintiff. The partiesdisagreed, however, over the amount of the reimbursement.The defendant claimed that it was entitled to recoverthe entire $13,316.63 it had previously paid, whilethe plaintiff contended that the defendant shouldrecover only two thirds of the reparations benefitsit had paid, or $8877.75. The plaintiff argued that thedefendant must contribute one third of its recovery ofreparations payments toward the legal expenses incurredby the plaintiff in effecting a recovery from the tortfeasor.

This dispute was presented to an arbitrator pursuantto the mandatory arbitration clause in the plaintiff'sinsurance policy. The arbitrator ruled in favor of thedefendant. The plaintiff subsequently made anapplication to correct or vacate the arbitrator'sdecision in the Superior Court. The trial court, Noren,J., granted the plaintiff's application and vacated thearbitration award. On appeal, the Appellate Courtremanded the case to the trial court for a de novoreview of the arbitrator's interpretation andapplication of the law. See Dugas v. Lumbermens MutualCasualty Co., 14 Conn. App. 153, 156, 540 A.2d 89(1988). The trial court, Shaughnessy, J., found for theplaintiff on remand, and the Appellate Court affirmedthe trial court's judgment on alternative grounds.Dugas v. Lumbermens Mutual Casualty Co., 22 Conn. App. 27,33, 576 A.2d 165 (1990). In its opinion the Appellate

[217 Conn. 635]

     Court stated that 38-175a-6 (d)(3) of the Regulationsof Connecticut State Agencies,2 upon which thedefendant relied in arguing for a complete recovery ofpreviously paid reparations benefits, "cannot be readto be valid without reference to the attorney's feeprovision of [General Statutes] 38-325 (b)."3 Id.On the basis of what it perceived as the public policyunderlying 38-325 (b), the Appellate Court concludedthat the regulation would be void unless interpreted asincorporating the attorney's fees provision embodied in38-325 (b). Id., 39.

[217 Conn. 636]

We granted the defendant's petition for certificationlimited to the following issues: (1) whether theAppellate Court properly considered the validity of38-175a-6 (d)(3) of the Regulations of ConnecticutState Agencies;4 and (2) whether the Appellate Courtproperly concluded that the insurance regulation wasvoid unless the attorney's fees provision of 38-325 (b)was read into the regulation. Dugas v. LumbermensMutual Casualty Co., 216 Conn. 803, 577 A.2d 715(1990). Because our decision depends upon therelationship between the regulation at issue and38-325 (b), we need to consider the background andevolution of these and other statutory and regulatoryprovisions related to uninsured motorist coverage.

[217 Conn. 637]

In 1967, the legislature enacted General Statutes38-175c,5 which provides that all automobile liabilitypolicies must include uninsured motorist coverage. In1972, the legislature passed the no-fault insurancestatutes, including General Statutes 38-326 and 38-327,which require all motorists to obtain uninsuredmotorist and basic reparations coverage, and 38-325(b), which provides that an insured who receivesreparations benefits must reimburse the insurer for thebenefits received if he subsequently obtains, byjudgment or settlement, an award of damages from thetortfeasor. As originally enacted, 38-325 (b) did notallow the insured to deduct from the reparationsbenefits reimbursed to the insurer an amount reflectingthe insurer's share of the legal fees incurred by theinsured in recovering from the tortfeasor. In 1980, thelegislature amended 38-325 (b) to allow insureds toreduce the amount of the reimbursement by an amountreflecting the insurer's contribution to the attorney'sfees expended by the insured in obtaining the damageaward. See Public Acts 1980, No. 80-131.

[217 Conn. 638]

In 1975, the insurance commissioner, pursuant to hispower under General Statutes 38-175a6 to adoptregulations concerning the terms of uninsured motoristcoverage, amended 38-175a-6 (d)(3) of the Regulationsof Connecticut State Agencies in order to allowinsurers to seek reimbursement for reparations benefitsfrom amounts paid or payable to their insured by reasonof uninsured motorist coverage provided by the insurer.The amended regulation was approved by the legislativeregulation review committee. In 1986, the insurancecommissioner again amended 38-175a-6. That amendment,however, did not affect the provisions of theregulation at issue in this case. The legislativeregulation review committee reviewed and approved the1986 amendment to the regulation.

With this background in mind, we turn to thedispositive issue in this appeal, namely whether thedefendant, under 38-175a-6 (d)(3) of the regulations,is entitled to full reimbursement of the $13,316.63 itpaid the plaintiff in reparations benefits, or whetherthe defendant can collect only two thirds of thatamount ($8877.75). The Appellate Court concluded thatthe defendant is entitled to collect only the latter amountbecause 38-175a-6 (d)(3) was repealed by implicationwhen the legislature amended 38-325 (b) in 1980 to allowthe reduction of the reimbursement for reparationsbenefits7 from damage awards in order to reflectattorney's fees paid by the insured to recover from the

[217 Conn. 639]

     tortfeasor. Although the Appellate Court did notexplicitly state that it concluded that 38-175a-6 (d)(3) was repealed by implication by the amendment of38-325 (b), this conclusion is implicit in its opinion.

The plain language of 38-175a-6 (d)(3) of theregulations does not provide for a deduction forattorney's fees from the reimbursement for reparationsbenefits out of uninsured motorist benefits payable tothe insured by his own insurer. The regulation statesthat "[t]he policy may also provide that . . . anyamount of any basic reparations benefits paid orpayable under the policy will reduce the damages whichthe insured may recover under this coverage . . . ."(Emphasis added.) The Appellate Court did notconclude, and the plaintiff does not contend, thatprior to 1980 the regulation provided for a setofffor attorney's fees or that the 1975 revision of theregulation was void ab initio because it did notinclude such a provision. Rather, the Appellate Courtconcluded that the public policy underlying the 1980amendment to 38-325 (b) applied not only to thereimbursement to the insurer of reparations benefitsfrom damage awards from tortfeasors, but also to thereimbursement of those same benefits from uninsuredmotorist coverage benefits payable by the insurer tothe insured.8 Dugas v. Lumbermens Mutual CasualtyCo., supra, 22 Conn. App. 37. The court concludedthat the regulation would be void as against publicpolicy if interpreted as not providing for a setoff forattorney's fees from the reimbursement for reparations

[217 Conn. 640]

     payments under such circumstances, and thereforeconstrued the regulation as allowing the setoff.9Id., 39.

This case differs from prior cases in which we haveaddressed the validity of regulations issued by theinsurance commissioner. The party challenging aregulation typically claims that the regulation wasinconsistent with or beyond the legislature's grant ofauthority to the commissioner at the time the relevantprovisions of the regulation were issued. See, e.g.,Travelers Ins. Co. v. Kulla, 216 Conn. 390,579 A.2d 525 (1990); Roy v. Centennial Ins. Co., 171 Conn. 463,370 A.2d 1011 (1976); Citrano v. Berkshire Mutual Ins.Co., 171 Conn. 248, 368 A.2d 54 (1976). In contrast,the Appellate Court in this case held that 38-175a-6(d)(3), the relevant portions of which were issued in1975, only became invalid when 38-325 (b) was amended in1980. Dugas v. Lumbermens Mutual Casualty Co., supra,22 Conn. App. 39. The Appellate Court ruled, in effect,that the regulation was repealed by implication in 1980to the extent that the regulation did not allow for adeduction of attorney's fees from reimbursement due tothe insurer out of uninsured motorist benefits.10

[217 Conn. 641]

Regulations issued by the insurance commissioner toimplement the statutes governing uninsured motoristcoverage are presumed valid and have the force andeffect of a statute. Travelers Ins. Co. v. Kulla,supra, 399; Pecker v. Aetna Casualty & Surety Co.,171 Conn. 443, 449, 370 A.2d 1006 (1976); see Phelps DodgeCopper Products Co. v. Groppo, 204 Conn. 122, 128,527 A.2d 672 (1987). Therefore, the rule disfavoringthe implied repeal of a statute by the subsequentenactment of another statute also applies to theimplied repeal of a regulation by a statute, especiallywhere, as in the present case, the regulation at issuehas been approved by the legislative regulation reviewcommittee.11

The rule disfavoring implied repeals is a "wellestablished principle of statutory construction."Southern Connecticut Gas Co. v. Housing Authority,191 Conn. 514, 521, 468 A.2d 574 (1983). The legislatureis presumed to have acted with the intent to create aconsistent body of law. Warner v. Leslie-ElliottConstructors, Inc., 194 Conn. 129, 134, 479 A.2d 231(1984). If two statutes appear to be in conflict butcan be construed as consistent with each other, thenthe court should give effect to both. Hirschfeld v.Commission on Claims, 172 Conn. 603, 607, 376 A.2d 71(1977). "[E]nactments by the General Assembly arepresumed to repeal earlier inconsistent ones to theextent that they are in conflict." Southern ConnecticutGas Co. v. Housing Authority, supra. Because repeal byimplication is generally disfavored, however, theprinciple applies only when the relevant statutes"cannot stand together." Id.; Hirschfeld v. Commissionon Claims, supra, 606-607.

[217 Conn. 642]

There is significant evidence that the legislature,the legislative regulation review committee and theinsurance commissioner do not share the AppellateCourt's view that the amendment of 38-325 (b) in 1980impliedly repealed 38-175a-6 (d)(3). Since 1980, thelegislature has enacted six amendments to 38-175c, theuninsured motorist coverage statute, yet it has neverattempted to preempt the regulation by providing for asetoff for attorney's fees from a reimbursement ofreparations benefits payable from uninsured motoristbenefits. See Public Acts 1982, No. 82-441, 20, 23;Public Acts 1983, No. 83-267, 2; Public Acts 1983, No.83-461; Public Acts 1985, No. 85-7; Public Acts 1986,No. 86-403, 79, 132; Public Acts 1990, No. 90-243, 127.If a regulation has been in existence for a substantialperiod of time and the legislature has not sought tooverride the regulation, this fact, although notdeterminative, provides persuasive evidence of thecontinued validity of the regulation. Phelps DodgeCopper Products Co. v. Groppo, supra, 130.

The approval of revisions to 38-175a-6 by the legislativeregulation review committee in 1986 provides additionalsupport for the defendant's contention that theregulation was not repealed by implication in 1980.12General Statutes 4-17013 requires the legislative

[217 Conn. 643]

     regulation review committee to approve the adoption,amendment or repeal of any regulation. "The fact thatthe commissioner's regulation has been approved by thestanding legislative regulation review committee,although not dispositive of the issue before us, is animportant consideration in our determination of whetherthe commissioner's regulation comports with thelegislative intent . . . ." (Emphasis in original.)Phelps Dodge Copper Products Co. v. Groppo, supra,129-30; Texaco Refining & Marketing Co. v. Commissioner,202 Conn. 583, 599-600, 522 A.2d 771 (1987).

The fact that the insurance commissioner has neverproposed an amendment to the regulation to provide fora setoff for attorney's fees, especially in 1986 whenother provisions of the regulation were amended, is anindication that the commissioner does not share theview of the Appellate Court that the regulation wasrepealed by implication in 1980. "The insurancecommissioner has a `very broad grant of regulatoryauthority' in filling in the interstices of theuninsured and, underinsured motorist coveragelegislation . . . ." Roy v. Centennial Ins. Co., supra,473. "In the construction of statutes, great deferenceis to be accorded to the construction given the statuteby the agency charged with its enforcement. Griggs v. DukePower Co., 401 U.S. 424, 433, 91 S.Ct. 849, 28 L.Ed.2d158 [1971]; Corey v. Avco-Lycoming Division, 163 Conn. 309,326, 307 A.2d 155 [1972], cert. denied, 409 U.S. 1116,93 S.Ct. 903, 34 L.Ed.2d 699 [1973]" Id.

The critical factor, however, in determining whetherthe legislature impliedly repealed 38-175a-6 (d)(3) in1980, is whether the public policy underlying the 1980amendment to 38-325 (b) applies with equal force in

[217 Conn. 644]

     the context of the reimbursement of reparationspayments from uninsured and underinsured14 motoristrecoveries. The Appellate Court concluded that thepolicy expressed in 38-325 (b), as amended in 1980,applied both to the reimbursement of reparationsbenefits from damage awards and to reimbursement fromuninsured and underinsured motorist benefits.15Dugas v. Lumbermens Mutual Casualty Co., supra,22 Conn. App. 35. Although we find some similarity in themanner in which that policy is implicated in thecontext of reimbursement from damage awards andreimbursement from underinsured motorist recoveries,we do not find the connection sufficient to necessitatereading the attorney's fees provision of 38-325 (b)into the regulation.

A review of the legislative history of the statutereveals that the primary motivation leading to theenactment of the 1980 amendment to 38-325 (b) was thelegislature's concern that it was unfair to allow aninsurer to benefit from damage awards obtained by aninsured party from a tortfeasor without requiring the

[217 Conn. 645]

     carrier to bear some of the legal costs incurred ineffecting that recovery. 23 S. Proc., Pt. 4, 1980Sess., pp. 1266-73; 23 H.R. Proc., Pt. 12, 1980 Sess.,pp. 3629-33; Conn. Joint Standing Committee Hearings,Judiciary, Pt. 2, 1980 Sess., pp. 341-45, 416-20. It isimportant to note that there are two distinct benefitsthat an insurer may receive as a result of the insuredhaving secured a tort recovery, and it is necessary toconsider these benefits separately in analyzing thepurpose of the 1980 amendment to 38-325 (b).

The first benefit received by the insurer isreimbursement of the reparations benefits it hadpreviously paid to the insured. If the tortfeasor'sautomobile is fully insured, the insurer will bereimbursed its reparations benefits out of the tortrecovery secured by the insured. In such a case, theinsurer has benefited from the creation of a separatepool of funds by the insured from which thereimbursement of reparations payments is obtained.There is no dispute that under those circumstances38-325 (b) requires the insurer to share the legal feesrelated to that benefit.

In cases like this one involving an underinsuredmotorist, a tort recovery provides the insurer with asecond benefit for which 38-325 (b) does not require theinsurer to contribute to the related legal cost. Thebenefit is that the insurer's potential liability tothe insured under the uninsured motorist coverage isreduced by any tort recovery. Nevertheless, 38-325 (b)provides that the setoff for legal fees to which theinsured is entitled is based only on a percentage ofthe reparations benefits reimbursed, not upon apercentage of the amount by which the insurer'sliability under the uninsured motorist coverage hasbeen reduced. The amount payable to the plaintiff underthe uninsured motorist coverage of his policy has beenreduced by $20,000 because he secured that amount

[217 Conn. 646]

     from the tortfeasor. As we noted, however, 38-325 (b)does not reimburse insureds for the legal fees relatedto that benefit to the insurer. Rather, 38-325 (b)requires only that the insurer reimburse the insuredfor the legal fees related to the amount of reparationsbenefits that the insurer recovers.

The question then becomes whether the plaintiff hasbenefited the defendant by obtaining funds from whichreparations benefits will be reimbursed. When, as inthe present case, the insurer can seek reimbursement ofreparations benefits from either the damage award orthe underinsured motorist benefits and chooses thelatter course, it cannot be said that the insurer hasbenefited from the tort recovery in the mannercontemplated by 38-325 (b).16 While we recognize thatthe tort recovery clearly has benefited the defendantby reducing the underinsured motorist benefits payable,we do not discern any legislative policy to compelinsurers to share the legal cost related to that benefit.

It is not necessarily an anomalous result that aninsured party injured by a fully insured motorist isable to obtain a contribution from the insurer to hisattorney's fees from the amount of reparations benefitsreimbursed to the insurer, while an insured partyinjured by an underinsured motorist is not. The

[217 Conn. 647]

     legislature reasonably could have determined that requiringthe insurers to share the legal expenses in securingreimbursement of reparations benefits in cases involvingunderinsured motorists, where the insurer would also haveto pay underinsured motorist benefits, would placegreater pressure on insurance rates than it was willingto tolerate.17 Moreover, even if the plaintiff iscorrect that this result is anomalous, his remedy lieswith the legislature or the insurance commissioner, notwith this court.

We conclude that the plain language of 38-175a-6 (d)(3) does not provide for the setting off of attorney'sfees against the reimbursement of reparations benefitsfrom uninsured or underinsured motorist recoveries andthat the regulation as so construed is valid. We reachthis conclusion because of: (1) the general disfavorwith which this court looks upon implied repeals; (2)the evidence that the legislature, the legislativeregulation review committee and the insurancecommissioner do not regard the regulation asinconsistent with the public policy underlying theattorney's fees provision of 38-325 (b); and (3) ourown doubt as to whether that public policy applies tothe regulation at issue. In a case involving achallenge to a different provision of 38-175a-6, wenoted that "[t]he automobile liability insurancebusiness is one which is extensively regulated . . .and judicial revision of the terms upon which suchpolicies are issued may produce extensive repercussionsthroughout the insurance industry of the state." Roy v.Centennial Ins. Co., supra, 473. Those repercussionsare to be avoided in the absence of a clear legislativeintent to revise the existing regulations and statutes.

[217 Conn. 648]

The judgment of the Appellate Court is reversed and thecase is remanded to that court with direction to remandthe case to the trial court with direction to reinstatethe arbitration award.

In this opinion the other justices concurred.

1. This amount represents the $40,000 of uninsuredmotorist coverage, reduced by the $20,000 recovery fromthe tortfeasor as required by 38-175a-6 (d)(1) of theRegulations of Connecticut State Agencies. It is notdisputed that the defendant could have sought reimbursementof the reparations benefits from the $20,000 tort recoveryunder General Statutes 38-325 (b), but it did not do so.It is also clear that had the defendant sought reimbursementpursuant to 38-325 (b), it would have recovered only twothirds of the reparations benefits because the statutereduces the reimbursement to reflect the attorney's feesincurred by the insured in recovering from the tortfeasor. Title 38 of the General Statutes Revised to 1989 hasbeen transferred, and its sections renumbered, to title38a of the General Statutes Revised to 1991. For purposesof this opinion, we shall refer to the relevant statutesin their previous numerical form under title 38.

2. Section 38-175a-6 of the Regulations of ConnecticutState Agencies provides in pertinent part: "(d) LIMITSOF LIABILITY. The limit of the insurer's liability maynot be less than the applicable limits for bodilyinjury liability specified in subsection (a) of section14-112 of the general statutes, except that the policymay provide for the reduction of limits to the extentthat damages have been "(1) paid by or on behalf of any person responsiblefor the injury, "(2) paid or are payable under any workers'compensation or disability benefits law, or "(3) paid under the policy in settlement of aliability claim. The policy may also provide that anydirect indemnity for medical expense paid or payableunder the policy or any amount of any basic reparationsbenefits paid or payable under the policy will reducethe damages which the insured may recover under thiscoverage and any payment under these coverages shallreduce the company's obligation under the bodily injuryliability coverage to the extent of the payment." The policy issued by the defendant included aprovision based on 38-175a-6 (d)(3) that authorizedthe defendant to reduce any amount payable underuninsured motorist coverage by the amount ofreparations benefits paid.

3. General Statutes 38-325 (b) provides: "Whenevera person who receives basic reparations benefits for aninjury recovers damages, either by judgment orsettlement, from the owner, registrant, operator oroccupant of a private passenger motor vehicle withrespect to which security has been provided under thischapter or from a person or organization legallyresponsible for his acts or omissions, the insurer isentitled to reimbursement from the claimant to theextent that said basic reparations benefits have beenpaid, minus an amount which represents the insurer'scontribution toward attorney's fees for the collectionof basic reparations benefits. Such amount shall hecomputed by multiplying the total amount of suchreasonable attorney's fees and costs, by a fraction,the numerator of which shall be the amount of basicreparations benefits received by the claimant and thedenominator shall be the amount of damages recovered bythe claimant, less court costs. In no event shall suchamount exceed one-third the amount of the basicreparations benefits to be reimbursed to the insurer.The insurer shall have a lien on the claimant'srecovery for the amount to which he is entitled forsuch reimbursement; provided no such lien shall attachuntil such time as the proceeds of such recovery are inthe possession and control of such claimant." (Emphasisadded.)

4. The defendant initially argues that we shouldreverse the decision of the Appellate Court because theissue of the validity of 38-175a-6 (d)(3) of theRegulations of Connecticut State Agencies was neverbriefed or argued before either the trial court or theAppellate Court. We first note that the defendantconceded that its brief to the Appellate Court included"passing" references to this issue. Even in the absenceof such references, the defendant's first claim cannotsucceed. We have previously noted that this court hasthe discretionary authority to consider alternativegrounds for affirming a judgment even though thesegrounds have not been briefed or argued by the parties.See State v. Badgett, 200 Conn. 412, 432 n. 10,512 A.2d 160, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93L.Ed.2d 373 (1986). By implication, the Appellate Courthas this same authority. We conclude that the AppellateCourt did not abuse its discretion in considering thevalidity of 38-175a-6 (d)(3). Moreover, on appeal to this court, the defendant hasbeen able to address fully the merits of whether38-175a-6 (d)(3) is void. Therefore, it will not beprejudiced by our consideration of the merits of thisissue, and any prejudice it may have suffered in theAppellate Court is cured.

5. General Statutes 38-175c provides inpertinent part: "(a)(1) Every such policy shall provideinsurance, herein called uninsured motorist coverage,in accordance with such regulations, with limits forbodily injury or death not less than those specified insubsection (a) of section 14-112, for the protection ofpersons insured thereunder who are legally entitled torecover damages from owners or operators of uninsuredmotor vehicles and underinsured motor vehicles andinsured motor vehicles, the insurer of which becomesinsolvent prior to payment of such damages, because ofbodily injury, including death resulting therefrom,provided each insurer licensed to write automobileliability insurance in this state shall provide suchuninsured motorists coverage with limits requested bythe named insured upon payment of the appropriatepremium, but such insurer shall not be required toprovide such coverage with limits in excess of thelimits of the bodily injury coverage of such policyissued to such named insured. . . . Every such policyissued on or after October 1, 1971, which contains aprovision for binding arbitration shall include aprovision for final determination of insurance coveragein such arbitration proceeding."

6. General Statutes 38-175a provides in pertinentpart: "MINIMUM PROVISIONS IN AUTOMOBILE LIABILITYPOLICIES. (a) The insurance commissioner shall adoptregulations with respect to minimum provisions to beincluded in automobile liability insurancepolicies . . . . Such regulations shall relate to theinsuring agreements, exclusions, conditions and otherterms applicable to . . . uninsured motorists coverages. . . ."

7. In Shelby Mutual Ins. Co. v. Della Ghelfa,200 Conn. 630, 634-39, 513 A.2d 52 (1986), we upheld thedecision of the Appellate Court construing the term"basic reparations benefits" to include both basic andadded reparations benefits for the purpose of theprovisions of General Statutes 38-325 (b) concerningthe reimbursement of reparations benefits. There islikewise no distinction between these two terms for thepurposes of this opinion.

8. The Appellate Court rejected the plaintiff'sclaim that General Statutes 38-325 (b), as opposed to theregulation, is directly applicable to this case. Dugasv. Lumbermens Mutual Casualty Co., 22 Conn. App. 27, 31-32,576 A.2d 165 (1990). The plaintiff does not make thatargument in this appeal.

9. In reaching the conclusion that the publicpolicy underlying General Statutes 38-325 (b) was"strong and broad based," the Appellate Court reliedin part on the existence of similar attorney's feesprovisions in other statutes. Dugas v. LumbermensMutual Casualty Co., 22 Conn. App. 27, 35, 576 A.2d 165(1990), citing General Statutes 38-174n (b) (amount ofhealth insurer's lien on workers' compensation awardreduced by attorney's fees), and General Statutes31-293 (a) (employer's claim for reimbursement of workers'compensation benefits from damage award secured byworker reduced by attorney's fees). We do not find theexistence of these statutes sufficient to warrantreading the attorney's fees provision of 38-325 (b)into 38-175a-6 (d)(3) of the Regulations of ConnecticutState Agencies.

10. One can arguably read the Appellate Courtdecision as actually having ruled that the regulationwas amended by implication to provide for a setoff forattorney's fees when the legislature amended GeneralStatutes 38-325 (b). Such a distinction is insignificant,however, because "[r]epeal by implication when onlya part of the prior statute is repealed is identicalwith amendment by implication." 1A J. Sutherland,Statutory Construction (4th Ed. Sands) 22.22.

11. This conclusion is also consistent with therule that a state statute should be construed as havingpreempted a local ordinance only when the legislaturehas demonstrated its intent to regulate the entirefield or when the ordinance is in irreconcilableconflict with the statute. Dwyer v. Farrell, 193 Conn. 7,14, 475 A.2d 257 (1984).

12. The amendments to the regulation approvedin 1986 did not affect those portions of the regulationat issue in this case. The action taken by thelegislative regulation review committee in 1986, however,is still pertinent because it provides evidence onwhether the committee found the amended regulation to beconsistent with the overall statutory scheme that theregulation seeks to implement. See Caldor, Inc. v.Heslin, 215 Conn. 590, 599, 577 A.2d 1009 (1990); TexacoRefining & Marketing Co. v. Commissioner, 202 Conn. 583,600, 522 A.2d 771 (1987).

13. General Statutes 4-170 provides in pertinentpart: "(b) No adoption, amendment or repeal of anyregulation . . . shall be effective until the originalof the proposed regulation approved by the attorneygeneral . . . ha[s] been submitted to the standinglegislative regulation review committee . . . and theregulation has been approved by the committee . . . . Theform of proposed regulations which are submitted to thecommittee shall be as follows: New language added to anexisting regulation shall be in capital letters andlanguage to be deleted shall be enclosed in brackets . . . ."

14. "[A]n `underinsured motor vehicle' means amotor vehicle with respect to which the sum of the limitsof liability under all bodily injury liability bonds andinsurance policies applicable at the time of theaccident is less than the applicable limits ofliability under the uninsured motorist portion of thepolicy against which claim is made under subdivision(1) of this subsection." General Statutes 38-175c (b)(2).

15. The Appellate

16. The defendant stated that in all cases whereit can seek reimbursement from either a tort recoveryunder General Statutes 38-325 (b) or from underinsuredmotorist benefits pursuant to 38-175a-6 (d)(3) of theRegulations of Connecticut State Agencies, it willpursue the latter course because 38-325 (b) requires asetoff for attorney's fees while the regulation, itcontends, does not. We note that it seems arbitrary to rely on the sourceof the reimbursement, a factor within the insurer'scontrol, as the criterion for determining whether theinsurer has been benefited. The existing statutory andregulatory structure give the insurer this power,however, and our decision must be made within thisframework. See General Statutes 38-325 (b);Regs., Conn. State Agencies 38-175a-6 (d)(3).

17. The benefit argument is also weaker in a caseinvolving an underinsured motorist, as opposed to afully insured motorist, because General Statutes38-175c (b)(1) requires an insured party to exhaust hisremedies against the tortfeasor as a condition ofobtaining underinsured motorist benefits.

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